Overcriminalization

Rampant Criminal Laws Make Bullies and Tyrants Rejoice

When "almost anyone can be arrested for something," no one is safe.

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"Almost anyone can be arrested for something," Justice Neil Gorsuch observed in a case the Supreme Court decided last month. Mike Chase, a lawyer who has been cataloging federal offenses on his @CrimeADay Twitter feed for five years, likewise notes that "the specter of criminal liability hangs over all of us all the time."

Chase's new book, How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender, is a work of humor. But he is making the same disconcerting point as Gorsuch: When statutes authorizing criminal penalties are so numerous, obscure, complicated, broad, and vague that no one can say for sure what the law requires, the average citizen despairs, while bullies and tyrants rejoice.

"When the country was founded," Chase notes in a recent Reason TV interview, "there were basically three federal crimes": treason, counterfeiting, and piracy. Today there are so many that no one has managed to count them. "The Department of Justice said that they couldn't do it," Chase says. "They tried in the '80s and quit." It's true.

Some estimates put the total in the vicinity of 300,000. "If I do one a day," Chase deadpans, "I'll only need like 800 years to finish the job."

The vast majority of those federal offenses are regulatory violations that can be prosecuted as crimes. They include some of the more amusing examples highlighted in Chase's book, such as selling runny ketchup, removing llama manure from a quarantine facility, and making an "unreasonable gesture" at a passing horse in a national park. But such regulatory wrinkles are not so funny if you happen to be prosecuted for accidentally operating a snowmobile in a National Forest Wilderness Area after getting lost in a storm or for discharging oil into a U.S. waterway because of a mistake someone else made.

Part of the problem is that Congress has ceded its lawmaking powers to executive-branch agencies while broadly declaring that violations of whatever regulations they happen to write can be treated as crimes. Chase argues that prosecutable offenses should be limited to those specifically identified by Congress.

Overcriminalization also afflicts state legal codes, as the Manhattan Institute has documented. As of 2016, the five states the think tank had studied were adding new crimes to their books at an average rate of 42 per year.

These proliferating crimes can result in custodial arrests, with all the attendant risk, humiliation, and loss of liberty, even when the offense is not punishable by incarceration. In 2001 the U.S. Supreme Court upheld the handcuffing, booking, and jailing of a woman who violated a Texas law requiring drivers and front-seat passengers to wear seat belts.

The Texas group Just Liberty found that "more than 45,000 Texas drivers were arrested at traffic stops for Class C misdemeanors" in 2018. That amounted to less than 1 percent of traffic stops, which suggests the potential for retaliatory arrests. Other things being equal, the people arrested for conduct that rarely leads to arrest will tend to be the people who annoy cops the most.

In the case that the Supreme Court decided last month, a man arrested by Alaska state troopers for disorderly conduct (a vaguely defined, highly elastic crime) argued that they violated his First Amendment rights because they were punishing him for expressing opinions that offended them. Most of the justices thought that claim was blocked because police had probable cause for the arrest.

Justice Gorsuch dissented, saying "criminal laws have grown so exuberantly and come to cover so much previously innocent conduct" that such a rule would pose a grave danger to freedom of speech. "If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas," he warned, "little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age."

© Copyright 2019 by Creators Syndicate Inc.

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  1. Once again, we see that that the “you have nothing to worry about if you’re not doing anything wrong” line is not only incorrect, but a lie.

    1. Quite to the contrary, we all know the difference between right and wrong, and a few minor problems with the implementation of our nation’s criminal laws doesn’t mean anyone is a “tyrant.” Heck, no one is perfect, and a little choke hold here, a little choke hold there is all quite for the best in the long run. As for “bullies,” we all know one when we see one, especially online, and for this reason any form of “criticism” that crosses the line should be illegal, especially in an academic context—the kind of impermissible “satire” we’ve been confronted with from time to time here at NYU is a good example. In this regard, see the documentation of our nation’s leading criminal “parody” case at:

      https://raphaelgolbtrial.wordpress.com/

  2. This is stupid.

    There are federal laws about how many hours train personnel can work.

    “First, no employee engaged in train or engine service may be required or permitted to work in excess of twelve consecutive hours. After working a full twelve consecutive hours, an employee must be given at least ten consecutive hours off duty before being permitted to return to work.” (49 CFR Appendix A_to_part_228 – Requirements of the Hours of Service Act)

    But how many of us are involved in train operations?

    Sure there are more laws but not all of them apply to all of us all the time.

    1. … And then they came for the train operators, and I said nothing…

      1. . . . because the train operators were union and vote democratic . .

    2. “Three Felonies a Day” is on my reading list; perhaps you should add it to yours.

      The point is that the relinquishing of virtual legislation to the regulatory agencies [some call it “Deep State”] has resulted in an over-criminalization of the country, to the point we are resembling the quote by Beria [the first overlord of the Soviet State Security]: “Show me the man and I’ll show you the crime.”

      1. While I agree that over criminalization is a serious problem that needs to be addressed “Three Felonies a Day” grossly exaggerates the problem.

        The average person without a doubt commits several infractions or even three minor misdemeanors a day. But felonies? No.

        1. The average person without a doubt commits several infractions or even three minor misdemeanors a day. But felonies? No.

          You’re taking a one dimensional view of over-criminalization. Freddie Gray committed no felonies and wasn’t charged. The intent of the idiom isn’t “90 class 1 felonies a month, no exceptions” as much as “On any given day an average of 3 ‘felonies’ can be effectively fabricated or assembled and enforced against anyone”. A good portion of Chicagoland traffics guns and knives in and out of weapon-free zones daily. One felony for each offense and you reach the average of 3 a day pretty quickly.

      2. And again, how many of us are:
        selling runny ketchup AND
        removing llama manure from a quarantine facility and
        making an “unreasonable gesture” at a passing horse in a national park and
        operating a snowmobile in a National Forest Wilderness Area after getting lost in a storm and
        discharging oil into a U.S. waterway and
        operating a train and…

        1. Your’e on a roll, don’t stop. Consider:

          1. Logging on to an unsecure network, or using a fake name to register an online account: Computer Abuse and Fraud Act [third degree felony]

          2. Walking through town with a permanent marker on your person: consider many local laws intended to criminalize graffiti [and yes, people actually get arrested for that]

          3. Make a bet on a sports game with a group of your friends: violation of the Illegal Gambling Act of 1970. “According to the IGA, any betting that goes against state or local law, involves five or more people and has a revenue of at least $2,000 in one day constitutes an illegal gambling operation, punishable by up to 10 years in prison.”

          4. Writing or posting anything that might be regarded as disturbing and “hateful” In some states [KY for example] writing a disturbing story can result in a second degree felony for making terrorist threats. In IL “disturbing fiction” can be prosecuted as “disorderly conduct” and in OK a totally made up story [where someone gets killed or injured} can warrant a charge of “planning serous bodily harm” and get you a maximum penalty of 10 years in prison.

          5. Texting a “salacious” or “questionable” picture of yourself to a friend; this especially applies to youth as young as 12 you find themselves charged with trafficking in child pornography.

          6. IRS? We all have ti deal with them, and the opportunities for breaking a federal law there are manifold and include everything from tax evasion to mail fraud. Mens rea? Not really. It is what the feds often resort to when they can pin anything else of substance on you.

          7. Gun laws [far too many to count, but many politicians only want more]

          7. Shooting a pestilent bird [as in a nasty ass grackle] on your own property; violation of the Migratory Species Act and any number of DNR regulations.

          People have in fact been arrested for all of these, and it is not “unusual” for this to happen. This is over criminalization, and I honestly do not understand why you would want to defend it. This is, after all, a “libertarian” website, right?

    3. Even assuming your point, apedad, you still have to read the regulation to know that it doesn’t apply to you. That is fundamentally not possible. If the DoJ can’t even catalog the total number of federal crimes, there is no possible way for you to know what you could be held accountable to.

      You happen to know that train operations don’t apply to you. You have no practical way to know what else is out there that you don’t know about.

  3. So we started with 3, we could get by with the four that address human behavior in the Bible.
    Do not murder
    Do not commit adultery (rape)
    Do not steal
    Do not commit perjury
    (Do not covet is left out because that is thought crime, not an action)

  4. Coming from a guy with a 3 year woody for impeaching the president on (unproven) process crimes this is fucking rich.

    1. Sullum has a woody for impeachment? Got any examples? I don’t recall anything from him that could be characterized that way.

      1. I’m not surprised. Literally every motherfucker here does nothing but fucking lie day in and day out and it probably gets hard to handle all the cognitive dissonance. Here you go: https://reason.com/2019/05/22/justin-amash-is-right-about-impeachable-conduct/

    2. Impeachment is not a federal crime. Trump is a bully and in power so as such is fair game for intense scrutiny. Obstruction of justice isn’t one of the unjust federal laws. Your comment fails in so many ways.

      1. Obstruction of justice demonstrably didn’t take place, which is why Sullum pretending like it did and then one week later bellyaching about the multitude of federal crimes for which a person can be railroaded at will is so fucking hilarious. Maybe if you took his cock out of your throat long enough to get a little oxygen it would make more sense to you. Probably not though.

    3. Impeachment isn’t a criminal process — it’s political. The phrase “High Crimes and Misdemeanors” is not defined in the Constitution — it means whatever 218 representatives say it means.

      The House could impeach Trump for throwing shade at AOC and it would be perfectly constitutional.

      The check on this plenary Congressional power is the Senate, which would be extremely unlikely to remove the president from office unless it had a good reason.

      1. “The phrase “High Crimes and Misdemeanors” is not defined in the Constitution — it means whatever 218 representatives say it means.”

        No, ultimately it means what 67 Senators think it means.

      2. And yet Sullum believes that the president’s impeachable conduct consists of process crimes. Your quarrel is with the author.

  5. Land of the free.

  6. got book last time you posted it. hilarious.

    >>broadly declaring that violations of whatever regulations they happen to write can be treated as crimes.

    Christ, what assholes.

  7. Cue Tony to explain why government regulations are good…

    1. As a seemingly well intentioned and self proclaimed “liberal” colleague of mine put it, “people do not do what they are supposed to do, and there need to be rules by which they must be made to obey.” I think authoritarianism, given the assumption that a government of their choosing will come to fruition, prevails among that crowd. This is how the rubes and yokels will be made to catch up with the times. They of course never think such a mechanism will ever be used against them.

      Take it from here Rev…

      1. The Giver: If people have the freedom to choose, they choose wrong.

  8. “Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.”

    1. Thank you mpercy; I’ve been trying to recall where that quote is from [Atlas Shrugged of course] as it is so applicable to the discussion at hand. We seem to be faced with any number of persons, within and outside of government, who want to bring about that exact result. Or, if not overtly wishing for it, are willing to passively let it come to fruition.

      1. I’m been thinking that Atlas Shrugged is closing on 1984 as a guidebook for the left. High-speed rail? Top Men?

        Wesley Mouch…issued another directive, which ruled that people could get their bonds “defrozen” upon a plea of “essential need”: the government would purchase the bonds, if it found proof of the need satisfactory. …One was not supposed to speak about the men who…possessed needs which, miraculously, made thirty-three frozen cents melt into a whole dollar, or about a new profession practiced by bright young boys just out of college, who called themselves “defreezers” and offered their services “to help you draft your application in the proper modern terms.” The boys had friends in Washington.

        Remember Obamacare Navigators?

        1. “Remember Obamacare Navigators?”

          I’ve known several and they were all very low level functionaries, albeit cogs in a wheel to get people to sign up. The “boys” clearly had more knowledge, position, and pull to help you get your money [what was rightfully yours, for a price naturally]. Any system that is totalitarian by nature inevitably breeds two things: thugs and parasites.

  9. Appointing Gorsuch is the best thing Trump has done as President.

    1. ^^^

  10. Somewhat OT- got in an argument with my wife last night over a meeting she went to about gun safety sponsored by moms demand action. We don’t own any and neither do most of the people we know whose kids ours play with. Anyways, she said they discussed asking their friends parents if there are any guns in the house (along with questions like “does anyone smoke”) before allowing them to play at that house. I told her this could lead to a long list of any number of ridiculous questions such as: “does anyone watch porn/take opioids/own a mean dog” and would lead to fewer playmates for the kids. She got really pissed off at me and stormed out of the room (guess that’s what I get for marrying a proggy).

  11. Man did that video about Unser piss me off. What a bunch of snivelling fucken rats U.S. Forest Services were in that case – including that fat fuck judge. Punks. Legalized criminal punks.

    ‘The more numerous the laws, the more corrupt the society’. Tacitus.

    No kidding bullies love excessive laws. U.S. Forest is one example and more recently it’s gay ‘bake me a cake’ ambulance chasers.

    Unscrupulous and ambitious prosecutors can have a field day on citizens if they want.

  12. […] “An amusing guide to some of the more bizarre statutes can be found in the new book ‘How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender‘ (Atria Books) by criminal defense lawyer Mike Chase, who also runs the Crime A Day Twitter account.” [Reed Tucker, New York Post] “‘Almost anyone can be arrested for something,’ Justice Neil Gorsuch observed in a case the Supreme Court decided last month.” [Jacob Sullum] […]

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